Court: Not Prejudicial to Feign Sleep During Defense Argument

So sleepy

Just to be clear, the court was not saying it is okay to do this. To the contrary, it said it found the lawyer’s conduct—assuming it occurred—to be “wrongful, … sophomoric, unprofessional, and a poor reflection on the prosecutor’s office.” But the question before the court was whether the conduct had been unfairly prejudicial to the defendant’s right to a fair trial, and after looking at the whole record, the court affirmed his conviction.

That seems like the right result here, but unfortunately I still can’t advise you to go ahead and feign sleep.

As the ABA Journal reported, the improper conduct allegedly took place during closing arguments in the trial of Buddy Robinson, who was charged with killing his neighbor. First the lawyer is said to have employed sarcasm. He had been a prosecutor for 25 years, he told the jury, “and strangely enough, when it comes to trial, I’ve always been wrong…. We never get the right person. And as [defense counsel] told you in his opening statement, once again we’ve made a mistake.” Defense counsel indeed argued in his response that someone other than his client had committed the crime. “Well, as I told you,” the prosecutor said in rebuttal, “I’m wrong again. We’re always wrong. We never get it right.”

Despite these dramatic admissions, the jury found that the State did get it right this time, and the court sentenced Robinson to 55 years in prison.

Robinson moved for a new trial, based partly on those comments and partly on the claim that “during his [lawyer’s] closing argument and while defense counsel was unable to see the prosecutor, the prosecutor engaged in gestures and communications that constituted improper contact with the jury.” This didn’t mean contact outside the courtroom; it is also improper to try to communicate with the jury in the courtroom apart from opening statement and closing argument. No tossing them notes or holding up signs, for example, and you’re not even supposed to address them directly.

Robinson’s argument here, in other words, was that the feigning of sleep was intended to convey an implied message to the jury, something like: “I consider the defense argument/counsel so unworthy of belief that I am over here sleeping or pretending to sleep through it, and you should feel free to do so as well, after which you should return a verdict of guilty.” That kind of thing.

Also, one witness testified that the prosecutor also improperly responded to rhetorical questions defense counsel made, again behind his back. Who would have had this inside information about the victim’s activities, defense counsel asked? Robinson alleged that in response, “the prosecutor pointed at Robinson and mouthed the words, ‘He did.'”

The prosecutor denied that one, and the trial court believed him. The opening statement was on the record, of course. As for feigning sleep, the prosecutor admitted that “he probably did” engage in conduct that portrayed sleeping, but claimed that—if he did it—he would have done it “because it can annoy defense counsel,” not to send a message to the jury. This doesn’t seem too credible to me because, first, if you don’t remember doing it how do you remember why you did it? and second, it couldn’t have annoyed defense counsel because he didn’t see it. He was looking at the jury, not the prosecutor. So that semi-explanation is troubling.

But what the defendant did was far more troubling, of course, and as the Maine Supreme Court held, the evidence against him was so strong the outcome would have been the same in any event. Robinson had motive and opportunity, made highly incriminating statements to multiple people, and the victim’s blood was found in the trunk of his car. So there is no reason to think the verdict—which the jury spent just 90 minutes reaching—would have been different if the prosecutor hadn’t made faces at the jury.

Having said that, again, you should not do this. (Easier said than done, I can tell you, having inadvertently rolled my eyes many times during trial last month. Probably.) And while the court noted “it is well established that a prosecutor may use wit, satire, invective and imaginative illustration in arguing the State’s case,” the fact remains that intentional humor is risky in the courtroom—maybe especially for a prosecutor handling a murder trial.

Because the ABA Journal described the alleged snoozer as a former assistant attorney general, I briefly wondered whether an ethics complaint had been filed, but that was probably a waste of wondering time. Turns out he is a former assistant attorney general because he is now a judge. Courtroom humor can be problematic for judges, too, but it’s a lot easier for them to get away with it.